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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Ronald D. Leonard,

Plaintiff

 v.

Gary Mohr, et al.,

Defendants.

:

:

:

:

:

Civil Action 2:11-cv-152

Judge Sargus

Magistrate Judge Abel

REPORT AND RECOMMENDATION

This matter is now before the Magistrate Judge for an initial screening of the

complaint under 28 U.S.C. §1915(e)(2) to identify cognizable claims, and to dismiss

the complaint, or any portion of it, which is frivolous, malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 608-09

(6th Cir. 1997).

Plaintiff Ronald D. Leonard is an inmate formerly incarcerated at the

Chillicothe Correctional Institution (“CCI”), and now at the Ross Correctional

Institution (“RCI”). He alleges:

[Defendants’] conspiracy to unconstitutionally permit the (CCI)

disciplinary committee to find Plaintiff guilty of a false and fabricated

conduct report based upon a record devoid of the “some evidence”

required under the well settled U.S. Supreme [Hill] precedent

essentially rendering the May 18, 2010 disciplinary proceedings clearly

unconstitutional ultimately interfering with plaintiffs liberty interest

thus creating an atypical and significant hardship, of which

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 Plaintiff lists as defendants several individuals, including the wardens of

CCI and RCI, the Director of the Ohio Department of Rehabilitation and Correction,

and the members of the disciplinary committee. (Doc. 3 at 1-2.)

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Defendants unconstitutionally transferred Plaintiff on February 27,

2011 to Ross Corr. Inst. in violation of his constitutional Procedural

Due Process protections and the Defendants are liable to Plaintiff

under 42 U.S.C. Sec. 1983; Sec. 1985(3)... in hope of Plaintiff being

killed by the Aryan Brotherhood Gang that is aware of Plaintiff being

incarcerated here at Ross Corr. Inst.[...]

(Doc. 3 at 1-2.)1

 He seeks a restraining order to restrain Defendant Rob Jeffreys,

warden of RCI, “from further incarcerating Plaintiff at Ross. Corr. Inst.”, and seeks

immediate transfer to Hocking Correctional Institution.

Prisoners who have been found guilty in a prison disciplinary hearing are

sometimes precluded from using §1983 to collaterally attack the validity of the

hearing. See Edwards v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S.

641 (1994). This is the case where the results of the hearing affected or potentially

affected the eventual duration of the prisoner’s sentence, such as eliminating or

preventing credit for good behavior. However:

Heck’s requirement to resort to state litigation and federal habeas

before §1983 is not, however, implicated by a prisoner’s challenge that

threatens no consequence for his conviction or the duration of his

sentence. There is no need to preserve the habeas exhaustion rule and

no impediment under Heck in such a case, of which this is an example.

Muhammad v. Close, 540 U.S. 749, 751-52 (2004). Plaintiff does not allege, and it is

not apparent, that the result of the disciplinary hearing had implications for his

conviction or the duration of his sentence. This action is not therefore barred on

that basis. 

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Plaintiff’s complaint does not state what punishment Plaintiff received from

the disciplinary hearing based upon the “false and fabricated conduct report”. He

implies, however, that it was transfer to RCI, and it is this transfer which forms the

basis of his due process claim. (Doc. 3 at 2.) As the Sixth Circuit Court of Appeals

has explained:

To state a procedural due process claim under §1983, a plaintiff must

demonstrate that he possessed a protected liberty or property interest,

and that he was deprived of that interest without due process. Hahn

v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999). The question then

becomes which of prisoners’ conceivable liberty interests receive Due

Process Clause protection. In Sandin v. Conner, 515 U.S. 472, 484, 115

S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held that the

only liberty interest a prisoner may protect through §1983 is “freedom

from restraint which... imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.”

Williams v. Wilkinson, 51 Fed.Appx. 553, 556 (6th Cir. 2002). However, a prisoner

has no constitutional right to remain incarcerated in a particular prison or to be

held in a specific security classification. See, e.g., Olim v. Wakinekona, 461 U.S.

238, 245 (1983); Moody v. Daggert, 429 U.S. 78, 88 n. 9 (1976); Meachum v. Fano,

427 U.S. 215, 224 (1976). Mere transfer from one prison to another – or refusal to

transfer– does not by itself implicate a liberty interest protected by the Due Process

Clause.

Plaintiff also alleges, however, that Defendants made the transfer “in hope of

Plaintiff being killed by the Aryan Brotherhood Gang that is aware of Plaintiff

being incarcerated here”. He seeks a preliminary injunction from the Court

requiring the Ohio Department of Rehabilitation and Correction to transfer him to

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Hocking Correctional Institution. In determining whether to issue a preliminary

injunction, the Court must consider the following four factors:

1. Whether the party seeking the injunction has shown a

substantial likelihood of success on the merits;

2. Whether the party seeking the injunction will suffer irreparable

harm absent the injunction;

3. Whether an injunction will cause others to suffer substantial

harm; and

4. Whether the public interest would be served by a preliminary

injunction.

Procter & Gamble v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996), citing

Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).

Plaintiff has not alleged facts or presented evidence sufficient to warrant a

preliminary injunction in this case. To establish a substantial likelihood of success

on his Eighth Amendment claim that Defendants have deliberately sent him to RCI

in hopes that he will be killed, Plaintiff must present evidence showing that he

actually faces a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825,

847 (1994). His bare assertion that he is in danger and that the Aryan Brotherhood

Gang will kill him is unsupported even by any allegations that any threats have

ever been made against him by a gang member, or that he has taken some action

which would lead this gang to retaliate against him. Still less has he presented any

actual evidence of such danger, such as prison grievances in which he asked prison

authorities at either his current or former prison for protection against the Aryan

Brotherhood Gang. In the absence of any showing that Plaintiff actually faces a

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substantial risk of serious harm, the extraordinary relief Plaintiff seeks is not

warranted.

Because Plaintiff’s claims concerning his disciplinary hearing would be

barred as a matter of law, and because he has made no specific allegations or

presented evidence to support his request for a preliminary injunction, upon initial

screening pursuant to 28 U.S.C. §1915(e)(2) I RECOMMEND that his complaint be

DISMISSED.

If any party objects to this Report and Recommendation, that party may,

within fourteen (14) days, file and serve on all parties a motion for reconsideration

by the Court, specifically designating this Report and Recommendation, and the

party thereof in question, as well as the basis for objection thereto. 28 U.S.C.

§636(b)(1)(B); Rule 72(b), Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the

District Judge and waiver of the right to appeal the judgment of the District Court. 

Thomas v. Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller

v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Willis v.

Sullivan, 931 F.2d 390, 401 (6th Cir. 1991). 

s/Mark R. Abel 

United States Magistrate Judge 

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